THE REPUBLIC OF MOZAMBIQUE v CREDIT SUISSE INTERNATIONAL and OTHERS

An English court may order disclosure even where compliance could breach foreign criminal law. The decision is discretionary and must take account of comity, the actual risk of foreign prosecution, and the importance of the documents to the fair disposal of the English proceedings. The court should avoid precipitate conflict between jurisdictions and may use confidentiality arrangements or other tailored measures. Where the evidence on foreign law is incomplete, the court may defer the balancing exercise and seek further expert evidence and practical alternatives. Documents held by a foreign court are not treated as being under the control of the foreign state merely because that court forms part of the state’s constitutional structure.

The judgment concerned case management in substantial London litigation arising from proceedings involving the Republic of Mozambique. The Republic sought to disclose relevant documents from a criminal file held by the Mozambique Court, but that court had refused permission to copy and use the main file in the London litigation because of defendants’ constitutional privacy, correspondence and telecommunications rights.

The issues were whether the main file was within the Republic’s control, whether disclosure created a material risk of prosecution under Mozambican law, how the English court should exercise its disclosure discretion, and whether relevant material could be obtained from a copy file or other sources.

1. The arguments based on state control and self-prosecution were rejected. A court controlling documents for the conduct of judicial proceedings is not to be treated as part of the state. The relevant control is that of the independent judge. The court would also not direct a judge of another jurisdiction to act by treating that judge as an organ of the foreign state. Nor could the court assume, in the face of the Mozambique Court’s Order and incomplete expert evidence, that disclosure created no material risk of proceedings against the Republic or its officers.
2. The governing approach was discretionary. The court adopted the framework identified by Gross LJ in Bank Mellat v HM Treasury [2019] EWCA Civ 449 at [63]. The English court has jurisdiction to order production notwithstanding possible breach of foreign criminal law. The order is governed by English procedural law, but comity and the actual risk of foreign prosecution are important considerations. The court must balance that risk against the importance of the documents to the fair disposal of the English proceedings. It may tailor the order, including through confidentiality restrictions.
3. The balance was deferred. Further visibility was required concerning the scope and effect of the Mozambique Order, together with further expert evidence and consideration of confidentiality arrangements. Moving prematurely towards conflicting orders would not assist the parties or the administration of justice.
4. The copy file was treated differently. It was not controlled by the Mozambique Court. Relevant documents on it should, in principle, be disclosed and produced, but no order was made because further evidence and submissions were required.
5. The parties were encouraged to identify documents available through other routes, including copies already held by parties to the English proceedings, and to work collaboratively towards complete disclosure. The court reserved the consequences of any non-production for later consideration, including at trial.